Robert Groves v. Trans World Airlines, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-180083

Employee: Robert Groves

Employer: Trans World Airlines, Inc.

Insurer: Self-Insured c/o Gallagher Bassett Services, Inc.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated September 20, 2011. The award and decision of Administrative Law Judge John K. Ottenad, issued September 20, 2011, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 27, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was a ramp service agent for Employer who injured his low back and body as a whole as a result of the heavy, repetitive lifting from awkward positions, such as in the bellies of airplanes, which was required in his job.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low Back and Body as a Whole
14. Nature and extent of any permanent disability: Permanent total disability against Employer from the injury in this occupational disease
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,631.00

Employee: Robert Groves Injury No.: 00-180083

1. Value necessary medical aid not furnished by employer/insurer? $\ 21,576.03
2. Employee's average weekly wages: $\ 497.60
3. Weekly compensation rate: $\ 331.75 for TTD/ $\ 303.01 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Past medical expenses

$\ 21,576.03

266 1/7 weeks of temporary total disability from 03/27/00 to 05/03/05

$\ 88,292.89

$\ 331.75 per week for Claimant's lifetime starting 05/04/05, subject to review and modification by law

1. Second Injury Fund liability:

Denied $\ 0.00

1. Future requirements awarded: Continued and ongoing future medical care for Claimant's low back condition, including but not limited to chronic pain management, physical therapy, medications, medication management (doctors' visits), management of the spinal cord stimulator, and any other testing, treatment or evaluation that the treating doctors deem necessary to cure and relieve Claimant of the effects of the injury, as well as ongoing permanent total disability benefits, as described in the award.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Rick A. Barry.

Employee: Robert Groves

Injury No.: 00-180083

Dependents: N/A

Employer: Trans World Airlines, Inc.

Additional Party: Second Injury Fund

Insurer: Self-Insured

C/O Gallagher Bassett Services, Inc.

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On June 7, 2011, the employee, Robert Groves, appeared in person and by his attorneys, Mr. Rick A. Barry and Mr. Mark Akers, for a hearing for a final award on his claim against the employer, Trans World Airlines, Inc., which is duly Self-Insured under the statute C/O Gallagher Bassett Services, Inc., as well as the Second Injury Fund. The employer, Trans World Airlines, Inc., which is duly Self-Insured under the statute C/O Gallagher Bassett Services, Inc., was represented at the hearing by its attorney, Ms. E. Joye Hudson. The Second Injury Fund was represented at the hearing by Assistant Attorney General Michael T. Finneran. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) Leading up to March 27, 2000, Robert Groves (Claimant) allegedly sustained an occupational disease.

2) Claimant was an employee of Trans World Airlines, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 497.60, resulting in applicable rates of compensation of $\ 331.75 for total disability benefits and $\$ 303.01^{1}$ for permanent partial disability (PPD) benefits.

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[^0]: ${ }^{1}$ The record will reflect that the parties at the hearing stipulated to, what they believed to be, the maximum applicable rate of compensation for the date of injury for permanent partial disability benefits of $\ 314.26. However, upon review, I find that the parties were mistaken in the maximum rate of compensation for permanent partial disability benefits for an injury on March 27, 2000. By statute, the maximum rate of compensation for permanent partial disability benefits for an injury date of March 27, 2000 is $\ 303.01. Therefore, since I believe the intent of the parties was to stipulate to the maximum and since any higher rate would be contrary to the statute, I find that a rate of $\ 303.01 is the appropriate rate to use for the payment of any permanent partial disability benefits in this matter.

7) Employer paid no temporary total disability (TTD) benefits in this case.

8) Employer paid medical benefits totaling $\ 1,631.00.

1) Was there an occupational disease under the statute?

2) Did the occupational disease arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged occupational disease at work?

4) Is Claimant entitled to payment for past medical expenses in an amount to be determined?

5) Is Claimant entitled to future medical treatment?

6) Is Claimant entitled to the payment of temporary total disability benefits for a period of time to be determined?

7) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this alleged occupational disease?

8) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Medical treatment records of the Unity Health Medical Group (Dr. Leonard Lucas)

B. Certified medical treatment records of Family Medical Group (Dr. Leonard Lucas)

C. Certified medical treatment records of Creve Coeur Pain Control (Dr. Bakul Dave)

D. Medical treatment records of Dr. Paul Sheehan

E. Certified medical treatment records of Premier Care Orthopedics

F. Certified medical treatment records of Pain Management Services

G. Prescription receipts

H. Medicare Explanation of Benefits forms

I. Withdrawn prior to admission

J. Deposition of Dr. Jacques Van Ryn, with attachments, dated May 28, 2010

K. Deposition of Ms. Delores Gonzalez, with attachments, dated July 23, 2010

L. Summary of Employee's prescription costs

M. Billing statement from Signature Health Services (Dr. George Schoedinger)

N. Certified medical treatment records of Pain Management Services

1. Deposition of Dr. David Raskas, with attachments, dated August 18, 2009
2. Deposition of Ms. June Blaine, with attachments, dated November 17, 2010
3. Employee's wage statement from Employer/Insurer
4. Certified medical treatment records of BarnesCare
5. Certified medical treatment records of Orthopedic Associates, LLC

(Dr. John Wagner)

I. Deposition of Dr. Barry Feinberg, with attachments, dated July 31, 2009

Notes: 1) A number of the deposition exhibits were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence. Specifically on the Seven Day Rule objections, the party making that objection did not then request a continuance to reconvene the deposition after having had a chance to review the new opinion, and instead continued cross-examination, thus, that objection was effectively waived.

2) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on June 7, 2011. No additional markings have been made since their admission on that date.

Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational opinions and depositions, the medical records and bills, and the testimony of the other witness, as well as my personal observations of Claimant and the other witness at hearing, I find:

1) Claimant is a 47 year old, currently unemployed individual, who last worked for Trans World Airlines, Inc. (Employer) as a ramp service agent in 2000. Claimant admitted that he remained technically employed by Employer until May 2, 2000. Claimant had worked for Employer for about six years. Some of his job duties included loading and unloading baggage, cargo and mail on airplanes. He has not worked anywhere else since he last worked for Employer.

2) Claimant testified he was a high school graduate and had some college (one year) studying computer science. After high school, he spent two years in the United States

Coast Guard on the Aids to Navigation Team, primarily changing lighthouses from generator power to solar power.

3) After leaving the Coast Guard, Claimant worked for the University of California at Irvine travel department as a temporary employee. He then worked at a building materials supply company and also selling insurance at an insurance company. Immediately prior to working for Employer, Claimant worked for Continental Airlines for approximately six to seven years. He worked as a ticket agent and gate agent,